《民意，誰說了算？人民知情的抉擇》》註腳-第二十一章

第二十一章：達拉威爾傳奇

            知識才是力量

註腳

【1】 劉怡馨，2040年緬甸、越南超越台灣  黃志芳：有什麼本錢瞧不起人家，風傳媒，2016年5月17日，http://www.storm.mg/article/119864（最後瀏覽日：2016年5月21日）。

【2】 U.S. Census Bureau: QuickFacts Delaware, from https://www.census.gov/quickfacts/table/PST045215/10 (last visited May 21, 2016).

【3】 Matt Stevens, Internal Affairs Doctrine: California Versus Delaware in a Fight for the Right to Regulate Foreign Corporations, 48 BCL Rev. 1047 (2007) (“In the United States, a prospective corporation is free to incorporate in any state, regardless of where the corporation plans to locate physically or transact business.”).

【4】 Christopher Wink, 64% of Fortune 500 Firms Are Delaware Incorporations: Here’s Why, Technical.ly Delaware, September 23, 2014, http://technical.ly/delaware/2014/09/23/why-delaware-incorporation/ (last visited May 15, 2016).

【5】 Alex Mayyasi, Is Delaware a Tax Heaven, Priceconomics, Aug 13, 2013, http://priceonomics.com/is-delaware-a-tax-haven/ (last visited May 15, 2016).

【6】 Stevens, supra note 3 (“The Internal Affairs Doctrine ("IAD") has traditionally been a categorical rule mandating that in corporate conflict-of-laws scenarios, only the incorporating state has the right to regulate a corporation's internal affairs.”).

【7】 Wink, supra note 4; Jan C. Ting, Why do so many corporations choose to incorporate in Delaware, Newsworks, April 27, 2011, http://www.newsworks.org/index.php/local/brandywine-to-broad/18206-why-do-so-many-corporations-choose-to-incorporate-in-delaware (last visited May 21, 2016); Doug Bend, The Top 10 Reasons to Incorporate in Delaware, Bend Law Group, PC, August 1, 2011, http://www.bendlawoffice.com/2011/08/01/reasons-to-incorporate-in-delaware/ (last visited May 21, 2016).

【8】 Delaware State Bar Association, About the Section of Corporation Law, http://www.dsba.org/sections-committees/sections-of-the-bar/corporation-law/ (last visited May 21, 2016); Lewis S. Black, Why Corporations Choose Delaware. United States Corporation Company, 1999, p. 4 (“In broad outline, its terms recognize that the legislature will call upon the expertise of the Corporation Law Section of the Delaware Bar Association to recommend, review and draft almost all amendments to the statute.”).

【9】 Id. (“It is understood that the bar is obligated to leave parochial client interests behind when proposing corporate legislation, to present issues fairly and in an even-handed fashion, and always to deal candidly with the legislature on matters involving the corporation law. This understanding is greatly helped by the fact that Delaware is such a small state. The old maxim that one’s word is one’s bond works better in an environment where the people involved interact regularly. Because of this arrangement, the Delaware legislature, in exercising its legislative function, is able to utilize the sophistication of people who deal with corporation law matters on a daily basis and, through them, to tap into the network of lawyers throughout the country who regularly pass along constructive ideas and suggestions to the Delaware bar.....Wisely, the legislature has understood that, in the long run, the best corporation law is the one that has the respect of all the constituencies which corporations serve, and that short-term appeals to one group or another inevitably lead to disrespect for the law and undermine its long-term viability. Further, the fact that so many corporations are incorporated in Delaware means that no single corporation or small group of corporations is able unduly to influence the development of the corporation law, adding further to its stability.”).

【10】Lawrence A. Hamermesh, The Policy Foundations of Delaware Corporate Law, 106 Col L. Rev. 1749, 1752 (2006) (“Although the Delaware state constitution is formally superior in authority to the DGCL, there is now only one constitutional provision of any continuing importance in Delaware corporate law. That provision, specifying that amendments to the DGCL require a two-thirds vote of both the state Senate and the House of Representatives, has been touted as a source of stability of the Delaware corporate law. In truth, the supermajority legislative vote requirement is more symbolic than real, since voting on amendments to the DGCL is almost invariably unanimous. Plainly, then, the Delaware General Assembly has not perceived the content of the DGCL as an appropriate subject for partisan controversy.”).

【11】Ting, supra note 7 (“Corporations want to operate under modern laws that clearly spell out what they can and cannot do. But other states could enact such laws, or simply copy Delaware's. So the Delaware corporation statute can't by itself account for Delaware's success in attracting corporate incorporations.”).

【12】Black, supra note 8, at 5 (“The important fact is that cases involving corporation law issues came to be concentrated in a separate court in Delaware where there were no juries and where judges were called upon, on a regular basis, to explain the reasons for their decisions in written opinions.”).

【13】Delaware Supreme Court, http://courts.delaware.gov/supreme/ (last visited June 09, 2016).

【14】Ting, supra note 7 (“Other states can, and some have tried, to create similar courts dedicated to resolving corporate disputes. They, too, can resolve to appoint only their best legal experts to these courts. But they won't have the large body of Delaware case law, court rulings, generated over many years that provide both guidance and predictability to Delaware corporations, lawyers, and judges.”).

【15】Black, supra note 8 (“The Court of Chancery developed expertise in corporation law matters. Its reputation for expertise led, in turn, to more cases being brought to the Court and, over time, more expertise.”).

【16】Id. (“‘Corporate lawyers across the United States have praised the expertise of the Court of Chancery, noting that since the turn of the century, it has handed down thousands of opinions interpreting virtually every provision of Delaware’s corporate law statute. No other state court can make such a claim. As one scholar has observed, “[t]he economies of scale, created by the high volume of corporate litigation in Delaware, contribute to an efficient and expert court system and bar.’ ‘Perhaps most importantly, practitioners recognize that ‘[o]utside the takeover process...most Delaware corporations do not find themselves in litigation. The process of decision in the litigated cases has so refined the law, that business planners may usually order their affairs to avoid law suits.’ This recognition confers on the Court of Chancery one of the highest forms of praise the judiciary can receive.”).

【17】Id. (“The existence of this body of law has great practical advantage for those deciding where to incorporate. First, Delaware law is the common currency of corporations. Lawyers and judges everywhere are familiar with the law and respect it. It is the means by which, as Chief Justice Rehnquist said, ‘the Delaware state court system has established its national preeminence in the field of corporation law...”’).

【18】Id. (“Not only does the Secretary of State’s Office have the machinery to deliver quality service, it also is organized to deliver quality service with separate administrative sections to expertly handle basic customer inquiries, franchise tax matters and business entity filings. A second shift of Division personnel works until midnight, largely to accommodate requests for expedited handling, but also with the capability to pre-clear documents for subsequent filing. The Secretary of State even offers one hour, two hour, same day and 24 hour service for urgent and time-sensitive filings for an added fee.”).

【19】Ronald J. Daniels, Should Provinces Compete? The Case for a Competitive Corporate Law Market, McGill L. J. 131, 141-42 (1990) (“In contrast, in the competitive, decentralized model of law production, market forces are seen to play a pre-eminent role in the generation of legislation. Not unlike the allocation of resources in private economic markets, the production of laws in the decentralized model is seen to be guided by the ‘invisible hand’ of consumer demand. In this model of law production, local governmental units are believed to compete against one another in the provision of legislative product. Those governmental units providing superior products will, like ‘winners’ in economic markets, enjoy benefits from increased consumer patronage In this framework, the fact that gains in market share may accrue to one province at the expense of another is both predictable and uncontroversial.”).

【20】Kent Greenfield, Democracy and the Dominance of Delaware in Corporate Law, Law and Contemporary Problems, Vol. 57, 2004 (“Still the question remains whether Delaware’s dominance has been the result of, in William Cary’s famous phraseology, a “race to the bottom”—toward a legal regime that benefits managers at the expense of the shareholders —or a “race to the top”—toward an efficient, shareholder-centric governance framework.”).

【21】Bend Law Group, supra note 7 (“Angel investors and venture capitalists tend to prefer to invest in companies incorporated as a C Corp in Delaware. Therefore, if you are serious about receiving investments from these types of investors, you may want to incorporate in Delaware. Many investment bankers insist on a company being incorporated in Delaware before they take it public. Thus, if a goal is to eventually have an initial public offering (IPO), you may want to incorporate in Delaware rather than having to later convert the company to a Delaware corporation. If you incorporate in Delaware, you send a message – ‘This is a national company.’ From a marketing perspective, this could be important for your customers and investors. You also send a signal to investors that you understand their preferences and are serious about receiving investments.”).

【22】Delaware State Budget and Finances, Ballotpedia, https://ballotpedia.org/Delaware_state_budget_and_finances (last visited June 03, 2016).

【23】國家實驗研究院科技政策研究與資訊中心，新加坡正修法成立亞洲唯一「國際商業法庭」，2014年10月14日，http://iknow.stpi.narl.org.tw/post/Read.aspx?PostID=10213（最後瀏覽日：2016年5月21日）。

【24】經濟部駐新加坡台北代表處經濟組，新加坡國際仲裁中心入駐上海自由貿易區，台灣經貿網，2016年3月7日，http://info.taiwantrade.com.tw/CH/bizsearchdetail/8194835/C（最後瀏覽日：2016年5月21日）。

【25】新加坡聯合早報，新加坡將成立亞洲唯一國際商業法庭，2014年10月8日，引自駐西班牙台北經濟文化辦事處，http://www.taiwanembassy.org/ES/fp.asp?xItem=555070&ctNode=11958&mp=136（最後瀏覽日：2016年5月21日）。

【26】John R. Commons, Institutional Economics, American Economic Review, vol. 21 (1931), pp.648-657 (“Analysis of these collective sanctions furnishes that correlation of economics, jurisprudence and ethics which is prerequisite to a theory of institutional economics.”).

【27】Id. (“we may define an institution as collective action in control, liberation and expansion of individual action. Collective action ranges all the way from unorganized custom to the many organized going concerns, such as the family, the corporation, the trade association, the trade union, the reserve system, the state...Analysis of these collective sanctions furnishes that correlation of economics, jurisprudence and ethics which is prerequisite to a theory of institutional economics.”).

【28】Id. (“David Hume found the unity of these three social sciences in the principle of scarcity and the resulting conflict of interests, contra to Adam Smith who isolated economics from the others on assumptions of divine providence, earthly abundance and the resulting harmony of interests.”).

【29】Id. (“[T]ransactions are, not the "exchange of commodities," but the alienation and acquisition, between individuals, of the rights of property and liberty created by society, which must therefore be negotiated between the parties concerned before labor can produce, or consumers can consume, or commodities be physically exchanged.”).

【30】 Id. (“But the smallest unit of the institutional economists is a unit of activity -- a transaction, with its participants.”); 王躍生，新制度主義，揚智文化，1997年，頁19-20。

【31】Ronald Coase, The New Institutional Economics, American Economic Review, vol. 88 (1998), pp.72-74 (“John R. Commons, Wesley Mitchell, and those associated with them were men of great intellectual stature, but they were anti-theoretical, and without a theory to bind together their collection of facts, they had very little that they were able to pass on.”).

【32】Id. (“In saying this I should not be thought to imply that these analytical tools are not extremely valuable. I am delighted when our colleagues in law use them to study the working of the legal system or when those in political science use them to study the working of the political system. My point is different. I think we should use these analytical tools to study the economic system. I think economists do have a subject matter: the study of the working of the economic system.”).

【33】Douglass North, The New Institutional Economics and Development, Washington University, St. Louis, 2 (“How does this new institutional approach fit in with neo-classical theory? It begins with the scarcity hence competition postulate; it views economics as a theory of choice subject to constraints; it employs price theory as an essential part of the analysis of institutions; and it sees changes in relative prices as a major force inducing change in institutions.”);王躍生，註30，頁1。

【34】David D. Friedman, Law's Order: What Economics Has to Do with Law and Why It Matters, 39 (Princeton University Press) (2000) (“If transaction costs are zero, if, in other words, any agreement that is in the mutual benefit of the parties concerned gets made, then any initial definition of property rights leads to an efficient outcome.”); Kenneth Arrow, allocation, (“market failure is not absolute; it is better to consider a broader category that of transaction costs, which in general impede and in particular cases completely block the formation of markets”).

【35】王躍生，註30，頁52-53。

【36】同上，頁55。

【37】楊小凱、黃有光，專業化與經濟組織，一種新興古典微觀經濟學框架，經濟科學出版社，2000年，頁57。

【38】王躍生，註30，頁20。

【39】外交部，註25。

【40】經濟部，註24。

【41】外交部，註25。

【42】經濟部，註24。

【43】黃智勤，金磚四國 只有這兩個是真「金磚」，聯合財經網，2016年5月19日，http://money.udn.com/money/story/5641/1706081-%E9%87%91%E7%A3%9A%E5%9B%9B%E5%9C%8B%E3%80%80%E5%8F%AA%E6%9C%89%E9%80%99%E5%85%A9%E5%80%8B%E6%98%AF%E7%9C%9F%E3%80%8C%E9%87%91%E7%A3%9A%E3%80%8D（最後瀏覽日：2016年5月21日）。

【44】張德美，探索與抉擇：晚清法律移植研究，清華大學出版社，2003年，頁150-51，引自大清法規大全‧外交部，高雄，考證出版社。https://books.google.com.tw/books?id=r8jV1ZXkUWEC&pg=PA151&lpg=PA151&dq=%E9%A0%98%E4%BA%8B%E8%A3%81%E5%88%A4%E6%AC%8A+%E8%A7%A3%E9%87%8B&source=bl&ots=Auog9f22xv&sig=TYaHg1UTUryM9l5d9bndtsOH4Hw&hl=en&sa=X&ved=0ahUKEwja-eSv7OnMAhUKjJQKHXQiBEEQ6AEIaDAL#v=onepage&q=%E9%A0%98%E4%BA%8B%E8%A3%81%E5%88%A4%E6%AC%8A%20%E8%A7%A3%E9%87%8B&f=false（最後瀏覽日：2016年6月3日）。

【46】George J. Stigler, The Economics of Information, The Journal of Political Economy Vol. 69, Issue 3 (June 1961) 213-225 (“One should hardly have to tell academicians that information is a valuable resource: knowledge is power. And yet it occupies a slum dwelling in the town of economics.”).

【46】George J. Stigler, 施淑萍譯，喬治‧施蒂格勒回憶錄：一個自由主義經濟學家的自白（Memoirs of an Unregulated Economist），2006年，頁59。